AB v Nottingham City Council FINAL HEARING — 2021

AB, a man in his 40s with Asperger's syndrome, applied for a Short Breaks Links Worker role with Nottingham City Council and received a conditional offer subject to medical clearance. The respondent withdrew the offer at a meeting on 17 September 2019, then reopened the Employee Wellbeing and occupational health process after the claimant explained that the 2019 occupational health report had been based on adjustments originally drafted for a different role. The offer was finally confirmed withdrawn by letter on 5 February 2020.

The tribunal dismissed the direct disability discrimination complaints. It found that the delays in the pre-employment process were caused by matters other than disability, that the adverse assessment of the claimant's suitability was based on the July 2019 OH report rather than stereotyped assumptions, and that the respondent's view that the Short Breaks team should know his diagnosis was not because of disability. It also rejected the complaints about the assessment of lone working, the September 2019 withdrawal, the use of an OH provider without autism training, the treatment of the GP's letter, and the final confirmation of withdrawal in February 2020.

The victimisation claim also failed. The tribunal found only three protected acts, held that Mrs Davies was not aware of them, and was not persuaded that Mr Bhatti's handling of the Claimant's Commentary showed a retaliatory reason linked to those protected acts. It concluded that any irritation he had was because of the involvement of Mr Jones and the way the document had been sent to him, not because the claimant had done protected acts.

The reasonable adjustments claim was dismissed. The only PCP relied on was an approach of requiring any adjustments to be finalised before work began, but the tribunal held that the duty was engaged without the claimant identifying a reasonable step that would have avoided the disadvantage. The section 15 claim succeeded because Mr Bhatti failed to pass the Claimant's Commentary to Mrs Davies, meaning that the February 2020 decision was taken on incomplete evidence. The tribunal did not fix a final monetary award; it directed that any compensation for loss of earnings should assume the claimant would have started on 1 June 2020 if the offer had been confirmed and should then be reduced by 50 percent to reflect the chance that the offer would still have been withdrawn or not taken up, and it required the parties to either settle compensation or propose directions for a remedy hearing.